Posts from April, 2010

“Torture and the OLC,” and Other New Hearing Volumes

By authorizing extreme interrogation methods and defining them as legally permissible, the Bush Administration’s Office of Legal Counsel enabled “our country’s descent into torture,” said Sen. Sheldon Whitehouse (D-RI) last year at a contentious hearing of a Senate Judiciary Subcommittee that he chaired.  The hearing presented contrasting views on a range of related issues, including whether or not the Bush Administration’s “enhanced interrogation” program constituted torture under international law.  The 695 page record of the hearing was published late last month, with voluminous attachments and submissions for the record. See “What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration,” May 13, 2009.

Other noteworthy new congressional hearing volumes include the following (both pdf).

“The Proposed U.S.-UAE Agreement on Civilian Nuclear Cooperation,” Senate Foreign Relations Committee, October 7, 2009 (published March 2010).

“The Impact of U.S. Export Controls on National Security, Science and Technological Leadership,” House Foreign Affairs Committee, January 15, 2010 (published March 2010).

ODNI Report on Data Mining: We Don’t Do It

The Office of the Director of National Intelligence says it does not practice data mining in the narrow sense of searching databases to find anomalous patterns that could be indicative of terrorist activity.  So the latest ODNI annual report to Congress (pdf) on data mining programs (the third such report) has little new information to offer.

Instead of data mining, narrowly defined, the ODNI and other intelligence agencies use “link analysis,” which involves searches that begin with a known or suspected terrorist or intelligence target and work backwards and forwards from there.  But such “link analysis” is outside the strict definition of “data mining,” ODNI says, and so it is not discussed further in the new annual report.

Secrecy System Churned Along in 2009

The national security classification system hit some new highs as well as some new lows over the last year, the Information Security Oversight Office (ISOO) disclosed in its latest annual report to the President (pdf).

The total number of reported national security classification actions skyrocketed to a record 54.8 million classifications last year, a startling 135 percent increase over the year before, the ISOO report said.  But this rise was largely due to a change in reporting practices to include email and other electronic products that were excluded from previous reports, ISOO said, and so it “does not reflect an increase in classification activity.”

In fact, wrote ISOO Director William J. Bosanko in his transmittal letter to the President, “There were several positive developments this year” in terms of limiting classification activity.

The actual number of wholly new secrets, or “original classification actions,” decreased by 10 percent to 183,224 classification decisions.  (The large majority of classification actions are known as “derivative classifications,” which means that they incorporate or reproduce in a new document information that has previously been classified.)

The number of “original classification authorities” — the individuals who are authorized to designate information as classified in the first place — also decreased by 37% to 2,557, which is the lowest number of authorized classifiers ever reported, since ISOO began keeping statistics 30 years ago.

And agencies assigned a maximum duration for classification of ten years or less to 67 percent of newly classified records, the highest fraction ever.

Disappointingly from a public access point of view, however, the number of pages that were declassified declined by 8 percent in 2009, to 28.8 million pages, although the number of pages that were reviewed (52 million pages) actually increased slightly.

See the Information Security Oversight Office (ISOO) Report to the President for Fiscal Year 2009, transmitted March 31, 2010 and made public today.

The ISOO annual report is a touchstone for assessing the state of national security secrecy each year since it provides a unique public compilation of agency data on classification activity. Unfortunately, the underlying data are of questionable validity, and they may be completely unreliable.

So, for example, the latest report states that the CIA was responsible for no more than four original classification actions last year, and the Office of the Director of National Intelligence generated only two.  That seems doubtful, to say the least.  At the other extreme, the Army reported over 75,000 original classifications in 2009.  Based on this disparity in the numbers, it seems unlikely that agencies are using the standard terminology in the same way.  Or as the ISOO report put it, “We question whether many of these are truly original decisions.”

In short, there is still plenty of room for improvement in collection methodology and quality control in assessing classification activity.

Also, there are at least two categories of data that are not currently available which could be usefully reported in the future.

ISOO reports the number of classification challenges that are filed by authorized persons who dispute the classification of particular items of information (of which there were 365 in FY2009).  But it does not indicate the outcome of those challenges, i.e. whether they led to a change in classification status or not.  This information would be helpful in determining whether the official classification challenge procedure is a meaningful one, or a pointless exercise.

Another significant category of information that could be reported by ISOO in the future is the number of categories of classified information that are removed from existing classification guides and declassified as a consequence of the upcoming Fundamental Classification Guidance Review.  This Review, which is supposed to take place over the next two years, is the Obama Administration’s most important and most systematic effort to combat the problem of overclassification.  Although agencies are supposed to generate their own public reports of the Review results, a consolidated account and evaluation by ISOO would provide an early indication of whether the President’s plan to fight overclassification is working or not.

Former Official Indicted for Mishandling Classified Info

Thomas A. Drake, a former National Security Agency official, was indicted yesterday after allegedly having disclosed classified information to a reporter for a national newspaper “who wrote newspaper articles about the NSA and its intelligence activities in 2006 and 2007.”  The reporter and the newspaper were not named.

Mr. Drake allegedly provided classified documents to the reporter and assisted him or her with researching stories about the NSA that were published between February 27, 2006 and November 28, 2007.  “Defendant DRAKE served as a source for many of these newspaper articles, including articles that contained SIGINT information,” the April 14 indictment (pdf) stated.

“Our national security demands that the sort of conduct alleged here — violating the government’s trust by illegally retaining and disclosing classified information — be prosecuted and prosecuted vigorously,” said Assistant Attorney General Lanny A. Breuer in a Justice Department news release.

Interestingly, Mr. Drake was not specifically charged with unauthorized disclosure of classified information, nor was he charged at all under the “SIGINT” statute, 18 USC 798.  Instead, according to the indictment, he was charged under 18 USC 793 with unlawful retention of classified information, as well as with obstruction of justice and making false statements.

Economic Impacts of Prison Growth, and More from CRS

“The historic, sustained rise in [the U.S. prison population] has broad implications, not just for the criminal justice system, but for the larger economy. About 770,000 people worked in the corrections sector in 2008 [and this number is expected to grow]…. By comparison, in 2008 there were 880,000 workers in the entire U.S. auto manufacturing sector.”  See “Economic Impacts of Prison Growth” (pdf), April 13, 2010.

Other noteworthy new CRS reports obtained by Secrecy News that Congress has not made readily available to the public include the following (all pdf).

“The Role of the Senate in Judicial Impeachment Proceedings: Procedure, Practice, and Data,” April 9, 2010.

“Military Personnel and Freedom of Religious Expression: Selected Legal Issues,” April 8, 2010.

“Multilateral Development Banks: Overview and Issues for Congress,” April 9, 2010.

“Foreign Aid Reform, National Strategy, and the Quadrennial Review,” April 12, 2010.

“Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate,” February 19, 2010.

Experts Advise IC on Classified Biosecurity Activities

The Biological Sciences Experts Group (BSEG) is a group of non-governmental scientists who advise the U.S. Intelligence Community (IC) on activities to counter biological threats and weapons.  Aside from the fact of its existence, nearly everything about the group is classified, but a few details of the enterprise have lately emerged.

The BSEG is supposed to “provide technical advice and counsel on specific scientific and technical issues relevant to the IC’s mission to counter the threat posed by the potential proliferation of biological weapons and related technologies,” according to an internal account.  See “Biological Sciences Experts Group Concept Paper” (undated, probably 2006, FOUO).

The BSEG will “strengthen the integration of the life-science and intelligence communities and facilitate access of the IC to life-science experts outside of the Federal government.”  The BSEG is supposed to help intelligence agencies design experiments and collection methodologies, interpret results, and perform other kinds of technical assessments.  However, “the BSEG shall neither produce analytical intelligence products nor engage in collection.”

According to the original concept, the BSEG was to be comprised of 12 non-governmental individuals, supported by a larger network of experts.  The membership of the BSEG is not officially disclosed, unless the individual members choose to make themselves known.  The Group is managed by the National Counterproliferation Center of the Office of the Director of National Intelligence, and is subject to a steering committee of IC agency representatives.

It could not immediately be learned how active the BSEG has been, on what topics it was consulted, or what it may have accomplished.

For a previous account of the BSEG, see “Panel Provides Peer Review of Intelligence Research” by Yudhijit Bhattacharjee, Science, December 7, 2007, p. 1538 (sub. req’d).

FBI Invites Academics to Confer on Security

The Federal Bureau of Investigation will co-host a conference (pdf) this month “to promote positive continuous dialogue between the U.S. Intelligence Community and the academic community.”  The conference will be held at the SLAC National Accelerator Laboratory on April 29.

Topics of discussion will include the National Security Higher Education Advisory Board, which “has been an invaluable tool in providing advice to the FBI on the culture of higher education, including the traditions of openness, academic freedom, and international collaboration, while serving as a forum for discussion of national security issues.”

In 2008, authors from the FBI and the Federation of American Scientists jointly reported on a survey of attitudes among scientists concerning interactions with the FBI.  “The attitudes of scientists toward law enforcement personnel are not vastly different from those of the general public. However, a larger percentage of scientists indicated cooler feelings towards the FBI than the general public, suggesting that these reservations are particular to the scientific community and require specific solutions with the scientific community in mind,” the survey found. “[S]cientists are suspicious of the FBI and feel that they do not work well with the scientific community.”

“By taking steps to address suspicions early in any interaction and by treating scientists respectfully and professionally, law enforcement representatives are more likely to build a foundation of respect with their interaction and displace existing hostility,” the authors suggested.  See “How Scientists View Law Enforcement” by Nathaniel Hafer, Cheryl J. Vos, Karen McAllister, Gretchen Lorenzi, Christopher Moore, Kavita M. Berger and Michael Stebbins, Science Progress, December 22, 2008.

OSC on Turkey’s “Ergenekon” Underground Movement

A new report (pdf) from the DNI Open Source Center profiles Turkey’s subversive “Ergenekon” movement.

“‘Ergenekon’ is the name of an alleged illegal neonationalist organization accused of planning to oust the pro-Islamic Justice and Development Party (AKP) government through a military coup. The organization, in turn, has been linked to the so-called ‘Deep State,’ alleged to be a vast, underground network of secular Turks plotting criminal acts to destabilize the government,” the OSC report said.

“Ergenekon’s leader, also referred to as ‘Number One,’ has not yet been identified,” the OSC remarked.

The OSC does not make its products freely available to the public even when they are unclassified and not copyrighted.  But a copy of this report was obtained by Secrecy News.  See “Turkey — Guide to Ergenekon,” Open Source Center, March 19, 2010.

In Other News

Israeli Stores Stop Selling Book That Denounces Settlers by Robert Mackey, New York Times The Lede, April 12. “An Israeli bookstore chain announced on Sunday that it would stop selling ‘The National Left,’ a political manifesto by two Israeli authors.”

Who watches WikiLeaks? by Chris McGreal, The Guardian, April 9. “This week a classified video of a US air crew killing unarmed Iraqis was seen by millions on the internet. But for some, the whistleblowing website itself needs closer scrutiny.”

Inside WikiLeaks’ Leak Factory by David Kushner, Mother Jones, April 6. “WikiLeaks has revealed the secrets of the Pentagon, Scientology, and Sarah Palin—and the explosive video of a US attack on civilians and journalists in Iraq. Meet the shadowy figure behind the whistleblower site.”

The 9/14 Presidency by Eli Lake, Reason Magazine, April 6. “Barack Obama is operating with the war powers granted George W. Bush three days after the 9/11 attacks.”

First Unclassified Nuclear Posture Review Released

In what may be the Obama Administration’s single most significant reduction in national security secrecy to date, the Department of Defense this week published the first unclassified Nuclear Posture Review.

The Nuclear Posture Review (NPR) defines U.S. nuclear weapons policy, strategy and force structure.  As such, it is one of the most important national security policy documents in government.  Two previous Reviews conducted by the Clinton and Bush Administrations in 1994 and 2001 were classified and were not meant to be made public.

When portions of the Bush NPR nevertheless leaked in 2002, Defense Secretary Donald Rumsfeld furiously condemned the release.  “Whoever leaked it violated federal criminal law,” he said.  “It seems that there are some people who simply have a compulsion to seem important, so they take classified information which can damage U.S. national security and give it to people who aren’t cleared for it,” he added.  Even after the Bush NPR report leaked, another official said, “the last administration then found it difficult ever to talk about the results of the review, because it was talking about a leaked classified document.”

But this week, in a tangible sign of changing national security secrecy standards, Defense Secretary Robert Gates held a press conference to release the latest NPR document (pdf) himself.

“The report of the Nuclear Posture Review will exist only in unclassified form,” a Pentagon official said at a background briefing on April 6. “There will not be a classified Nuclear Posture Review from which we have redacted a lot of information and then just put forward an unclassified variant. This reflected a decision early in the process…. And in an effort to be fully transparent in our choices and the thinking behind them, we did not want to leave big open questions about what might be left unsaid because it’s in the classified domain.”

This is not the end of nuclear weapons secrecy, by any means.  For one thing, the exact size and composition of the U.S. nuclear arsenal remain classified (wrongly, we would say).  Also, “you know there are classified implementation processes, guidance processes,” the unnamed Pentagon briefer said. “So it’s not that it’s free of classified aspects, but the [NPR] report as such and all of the policy findings and recommendations and all of the logic behind them will be presented at the unclassified level.”

Incongruously, even the Obama Presidential Study Directive that initiated the latest NPR process a year ago remains classified and unavailable.  But with the release of the final Report, that seems like a mere bureaucratic absurdity of little consequence.

The public release of the NPR report does not guarantee a superior policy outcome.  But it does eliminate a longstanding hurdle to informed debate on nuclear weapons policy, and it permits the interested public to focus its attention on the substance of the policy, not on a tiresome pursuit of undisclosed records.

In December 1993, Secretary of Energy Hazel O’Leary undertook her Openness Initiative, releasing all kinds of previously secret records on nuclear weapons tests, historical production of nuclear materials, and many other important topics.  Borrowing a slogan from an old cigarette ad, a DOE spokesman at the time said that the Department’s new secrecy policy was to “classify less, and enjoy it more.”

In this instance, at least, the Obama Administration seems to be following the same joyful path.

The White House yesterday announced the release of dozens of executive branch agency Open Government Plans, which are supposed to guide the implementation of the President’s Open Government Directive.  Several of the Plans deal, directly or indirectly, with declassification of national security information and records.